When this case was in the district court of appeal of the first appellate district, Division No. One, Mr. Justice Waste prepared the opinion of the court, which was as follows:

Subsequently, the matter was transferred to this court in order that we might further examine the petitioner’s contentions that in view of the peremptory provision whereby the clerk of the superior court was commanded to collect all jury fees each day in advance, the language requiring settlement of unpaid fees as a prerequisite to further proceedings could apply only to persons prosecuting actions in forma pauperis and that the language quoted by Mr. Justice Waste from the statute of 1868, although reproduced in substance in the act of 1917, could apply in the latter statute only to fees earned by jurors in criminal cases. Petitioner calls our attention to the facts that juries in criminal cases are paid by the counties in which the trials take place; that in ordinary civil actions fees must be paid each day in advance; and that the only causes in which jurors remain uncompensated when for any reason they are discharged are actions in which the trial is conducted under an order in forma pauperis. He argues, therefore, that there is no ease in which the provision of the statute of 1917 that until the jury fees are paid “no further proceedings shall be allowed in the action” could possibly operate or be at all applicable excepting in a civil action proceeding in forma pauperis. He, therefore, insists that the statute of 1917 unequivocally applies to the trial of Martin v. Majors and that the jury having been discharged without finding a verdict, “no further proceedings shall be allowed in the action” until the jurors are paid.

To this argument respondents answer that for many years the law had been in virtual accord with the quoted section of the act of 1917, yet this court in Martin v. Superior Court announced no exception to the rule that in all stages of a trial a poor suitor shall have all of the benefits of uncompensated service from jurors and court officers.

There was no substantial change in the statutes amendatory of the act of 1868 with reference to the compensation of jurors until the statute of 1917 was adopted. (Stats. 1869-70, pp. 148-176; Stats. 1871-72, p. 188.) Section 631, subdivision 5, of the Code of Civil Procedure provides that a trial by jury may be waived in certain actions by the several parties to an issue of fact, “By failing, at the beginning of each day’s session, to deposit with the clerk the jury fees and, . . . mileage for such day”; but this subdivision (adopted in 1915) throws no light upon the problem presented to the court in the matter at bar. Petitioner declares that there is a wide and fundamental difference between the fee bill of 1868 and its early successors and that of 1917. In the act last framed, while there is a provision for payment of jurors by the county, all of their compensation in civil cases must come from the daily prepayment of the proper fees. By the earlier acts the fees were payable, in civil cases, by the prevailing party, before the entry of the verdict. There was also the provision that if the sum received by each juror should be found at the end of the term to be less than the legal per diem and mileage, the difference should be paid by the county.

But it is argued by respondents, that, inasmuch as actions prosecuted in forma pauperis were not specified in terms by the statute, and because the legislature was dealing with the general practice in jury cases, the lawmakers only had in mind the situation which might arise in a suit or proceeding in which solvent litigants might be engaged. Respondents, in short, contend that the apparent restricted meaning of the requirement for payment of fees prior to further proceedings after discharge without verdict of a jury, arises from unintentional inclusion in a statute adopting a new rule for prepayment of fees in ordinary cases of language which had been applicable to all litigants when used in earlier enactments. It is also asserted on behalf of respondents that in giving to the fee bill the interpretation suggested by petitioner this court would be going contrary to the spirit, if not the letter, of the decision in Martin v. Superior Court . With reference to the point last stated we agree with respondents that a very liberal view of the rights of poor litigants was adopted by this court in the Martin ease. There it was decided that only the plainest declarations of legislative intent would be construed as an effort to curtail the authority of courts given by the common law to admit litigants to sue in forma pawperis. In view of the language of the opinion in Martin v. Superior Court and of an examination of the various fee bills themselves we are constrained to agree with respondents.

Since the submission of the cause it has been suggested by a member of the court that perhaps the legislators who enacted the statute of 1917 might have had in mind the fact that at common law a vexatious suitor in forma pauperis or one who unnecessarily delayed or otherwise damaged his adversary might be dispaupered and prevented from having further benefit of uncompensated service of jurors. This leads to an inquiry whether or not it is reasonable to suppose that the new matter in the act of 1917 was an attempt automatically and without the intervention of a court to dis-pauperize anyone who had failed of a verdict from the jury first drawn. Such a result might follow the enforcement of the letter of the law of 1917.

Common-law courts, it is true, were jealous of extending the privilege of suing in this form. In Lilly’s Practical Register (edition of 1735), page 851, we are informed that Rolle, Chief Justice, said “that he did not use to admit anyone generally to sue in Forma Pauperis, that is, to sue in all Causes, but only to sue so in one Cause by Virtue of that Admittance, 1654. B. S. So that if he had other Cause to shew, he must petition again to be admitted to sue in Forma. Pauperis, sio toties quoties.” The same author in the same article uses the following language: “If one that is admitted to sue in Forma Pauperis, will not proceed according to the Buies of the Court, but useth Delays to vex his Adversary, the Court will dispauper him. (Mich. 22 Car. B. R.) For the Law doth not favour the Poor to do Injury to others, but to help them to recover their Bight, where they want Ability of themselves to do it.”

There was a rule also that if a pauper gave notice of trial and did not proceed, he should be dispaupered. A note of this rule is found in 91 Eng. Bep., Full Beprint, 433.

However, the rule seems to have been enforced, generally speaking, only upon some showing of vexatious conduct on the part of the pauper. In Blood v. Lee, reported in volume 95, Eng. Rep., Full Reprint, at page 912, we find the following interesting matter:

In Hullock’s “Law of Costs” (edition of 1796), 213, a case is cited where a single nonsuit made costs at once due, and it was ruled that the pauper might not thereafter proceed without paying costs, or showing, according to the act of parliament, that he was whipped. The same learned author, at the same page, .cites Winter v. Slow, supra, where it appeared that the nonsuit was not upon the merits, but occasioned by a mistake of plaintiff’s attorney and, therefore, in the court’s opinion not vexatious. In Noaks v. Watts, 93 Eng. Rep., Full Reprint, 609, it was decided that a pauper shall not pay costs for not going on to trial, as other plaintiffs do; but if the costs are taxed the court would prevent his being vexatious by obliging him to pay them before going to trial.

It was declared in Doe dem. Leppingwell v. Weake, 2 Smith’s (John Prince) Reports, 676, that withdrawing the record at the third day of the assizes, after giving notice of trial, was vexatious conduct meriting dispaupering of the plaintiff, but in that case it was decided that defendants had waived their right to complain.

In Brittain v. Greenville, 93 Eng. Rep., Full Reprint, 1072, the court denied a motion to tax costs after a lessor admitted in forma pawperis had a verdict against him. The purpose was to ground a further motion to stay his proceedings in a second ejectment. The decision seems to be grounded, in part at least, upon the failure of the moving party to proceed in the usual way to dispauper his adversary. It was held, however, that plaintiff’s conduct was not vexatious.

In Doe dem. Leppingwell v. Trussell, 6 East, 504 (probably a companion to Doe dem. Leppingwell v. Weake, supra), it was found that the plaintiff suing in forma pauperis had caused much delay by twice setting the case for. trial and afterwards countermanding the notice, in one instance, before the term, and in the other withdrawing the record on the third day of the assizes. The defendant had incurred above one hundred pounds costs in procuring evidence and his attorney swore that he believed the merits to be in favor of the defendant; The reporter describes the proceedings and their result as follows: “To shew that the proper course was to move that the party should be dispaupered in case of vexatious delay, 2 Salk. 506; Taylor v. Lowe, 2 Stra. 903; Brittain v. Greenville, 2 Stra. 1122, and 2 Tidd’s Practice, 893, were cited. It was contended that the lessor of the plaintiff ought at least to have countermanded his notice, and thereby saved a great part of the expense which the defendant had sustained.

“On this day Lawes shewed cause upon an affidavit, which stated, that the lessor of the plaintiff having about thirty copies of registers to procure, and several witnesses to col lect, among whom was an old and infirm man, was unable to get to the assizes in time, and therefore was under the necessity of withdrawing the record.

‘ ‘ The Court, however, made the rule absolute for dispaupering the lessor of the plaintiff, but discharged it as to the payment of costs.”

Under the heading “Forma Pauperis” in 1 General Index to the English Common Law Reports (Biddle and McMurtrie Edition of 1882), at page 373, we find the two following notes: “Amendment without costs not demandable of right. Foster v. Bank, li, 878; 6 Q. B. 878. Withdrawing record to amend must pay costs of the day. Thompson v. Hornby, lviii, 977; 9 Q. B. 978.”

In Weston v. Withers, 2 Durnf. & E. 511, it was held that after nonsuit in trespass the court will stay proceedings in a second action between the same parties for the same cause until payment of the costs of nonsuit, notwithstanding the fact that the plaintiff suing in forma pauperis was a prisoner at the time of bringing the second action.

It will be at once evident from the above citations, that the common-law courts were not very ready to -extend the privileges of a second trial to one suing in forma pauperis if there were circumstances indicating vexatious conduct. It will be also apparent that no very definite nor fixed rule was followed. But even the practice at the common law did not in general dispauperize one who merely failed to obtain a verdict, or who by the action of his counsel in securing a postponement of the cause for correction of pleadings permitted a jury to be discharged before submission of the issues of fact. [1] We cannot justly decide, therefore, that a rule analogous to that for dispaupering litigants at common law was intended by the legislature of 1917.

Besides, there could be no good reason for requiring a plaintiff excused from paying jury fees at the first trial to pay on a second trial the fees from which he was so excused. Some reason might exist for failing to extend the privilege to a second trial without fees, but that would be accomplished not by forcing him to pay the charges from which he had been exempted, but by exacting the usual charges for the second trial.

[2] The question whether one once admitted to sue in forma pauperis should, on account of vexatious conduct, delay, etc., be prevented from having further benefit of un compensated service, is one for the court having jurisdiction' in the case or proceeding to determine in the exercise of a wise discretion. Its discretion here, as in the case of one originally seeking to he admitted to sue in forma pauperis, should be exercised with a view to confine the privilege most strictly to those who, having a substantial right to enforce or preserve, are absolutely unable otherwise to so do, and who, once having been admitted to proceed in forma pauperis, diligently pursue a course free from unreasonable delay or vexatious conduct of any kind.

[3] In conclusion, we wish most emphatically to declare our conviction that such discretion should be used with the utmost care, to the end that unworthy persons who are neither indigent nor possessed of substantial rights may not enjoy this privilege.

Petition denied. Alternative writ discharged.

Angellotti, C. J., Lennon, J., Wilbur, J., Olney, J., and Lawlor, J., concurred.